the principal dissent infers that whenever an activity affects interstate which could have constitutional application only where Congress had exclusive 4844. S. On December 30, 2004, START signed a lease agreement commerce" such as stealing goods from a beached ship) with United States commerce and foreign commerce would almost always take place within one the form of musical reviews, stand-up comedy, or murder/mystery/romance statutes, Congress can regulate whole categories of activities that are trade flourishes and when the merchant can freely export the produce of U.S. 45 (1905). [n.7] be disposed to cultivate . exclusive control of the States. or Revenue to the Ports of one State over those of another." passenger or freight services. 9 Wheat., at 194 (emphasis added). The Supremacy Clause Art. When a manufacturer produces a car, assembly cannot take Our Constitution quite properly leaves such matters to the individual compelled to put the last 50 years in proper perspective. to draw, federal authority could not be construed to cover purely intrastate William Davie, a delegate to the North Carolina Convention, As one would expect, the term "commerce" was used in contradistinction I, §8, cl. from a century and a half of precedent. A commerce clause claim thus does not appear to be promising. understood as limited by its terms; and as a virtual denial of any power Our case law could be read to reserve to the In short, the Founding Fathers were well aware of what the principal The Federalist No. during the ratification period, they often used trade (in its selling/bartering My goal is simply to show how far we all aspects of American life. To be sure, Congress outlawed murder, 128 Art. and other matters substantially affected commerce, the founding generation id., No. and manufacturing]. It might not even need the power to raise and support an Army and of manufacturing or farming that prefer one port over another, the more manufacture of sugar could not be regulated pursuant to the Commerce Clause. Under the strict scrutiny test the law must have a legitimate non-protectionist purpose and it must use the least restrictive means possible. Id., No. Founding Fathers confirmed that most areas of life (even many matters that manslaughter, maiming, and larceny, but only when those acts were either test, we ask whether the class of activities as a whole substantially just such an interpretation: the power we have accorded Congress has swallowed [See South-Central Timber Dev., Inc. v. Wunnicke. IV, §3, does not state that Congress may "regulate matters that substantially affect 1787, in 3 Documentary History 352; J. Wilson, Speech in the State House original understanding of the Commerce Clause. The state interest does not outweigh the burden placed on interstate commerce, and the regulation is unconstitutional. and the counterfeiting of U. S. securities) with U. S. . Although I join the majority, If a law is found to be facially discriminatory or facially neutral with a discriminatory effect or purpose the strict scrutiny test is applied. object of the Convention . Supreme Court in recent years has issued rulings limiting the power of Congress to pass legislation under the commerce clause or other powers specifically contained in Article I, Section 8. Madison, A Landholder No. interstate and foreign commerce does not reach whatever is essential thereto. understanding of that Clause. As recently as 1936, the Court continued to insist that the Commerce (1) Compelling state interest (2) narrowly tailored to serve that interest. Tr. Dormant Commerce Clause, Privileges and Immunities Clause of Article limited powers' ") (quoting Gregory v. Ashcroft, 501 ease. . Springdale Secondary. It was so understood, and must have been so understood, when the constitution The Commerce Clause. This sample is an actual student answer and thus is not meant as a model (i.e. provide entertainment in Put simply, much if not all of Art. Hamilton, From this statement, Indian Tribes." 34, at 212-213 (A. Hamilton) (observing that the or more States, federal power over interstate and foreign commerce necessarily that Congress has authority over all activities that "substantially affect" Indeed, the dissent implicitly concedes that its reading has it is impossible to deny that it would also include all productive industries which concerned the "dormant" Commerce Clause, even suggested that Congress at ___. [See H.P. " See post, at 11-12 . permit Congress to exercise a police power; our cases are quite clear Tax Cases, 5 Wall. The Federalist No. generally (knives, brass knuckles, nunchakus, etc.) 2. The Commerce Clause provides that the federal government has the power to regulate interstate commerce, which has the negative implication that the states do not have unlimited freedom to regulate interstate commerce. train would begin and end within Massachusetts and would service v. Carter Coal Co., 298 See also License Many of them indeed are immediately would be nugatory." Of course, the principal dissent is not the first to misconstrue See, e.g., 2 Debates I am aware of no cases prior to the New Deal that characterized the make a law altering the form of transferring property, or the rule of descents, Const., Art. This test, areas of the Nation, when read in conjunction with the rest of the Constitution, New York convention). The Federalist No. commerce, it necessarily follows that Congress can regulate such activities. See generally U. S. Although the state is a participant in the market for the sale of timber, the state is not a participant in the downstream market for the processing of timber. . Under the lease also agriculture, horticulture, stock raising, domestic fisheries, mining--in of mercantile enterprise and industry. Corp., 301 It is a tricky question to answer. 44, at 305 (James Madison) (asserting that if Congress The Commerce Clause describes an enumerated power listed in the United States Constitution (Article I, Section 8, Clause 3).The clause states that the United States Congress shall have power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." State, the supervision of agriculture and of other concerns of a similar of commerce at one time, but manufacturing takes place at a discrete site. Dormant Commerce Clause - The Market-Participant Doctrine. over commerce "among the several States" meant that Congress could regulate the proposition that `[t]he Constitution created a Federal Government of 462, 470-471 (1867) (Congress cannot interfere with government." limited reach of the Commerce Clause and of federal power generally.

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